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Mandatory Key Disclosure and Self Incrimination in Canada

This presentation was given by Anna Manley at the Atlantic Security Conference on April 16, 2015. The content addresses the rights of Canadians at the Canadian border and at home in the context of informational privacy. It attempts to answer the question: Can a government agency compel me to give up my password or encryption key?

Mandatory Key Disclosure and Self Incrimination in Canada

3.
3
Are you a pedophile?
Are you a criminal?
Did you sign a non-disclosure agreement with your client?
Did you guarantee privacy to your client?
Are you a Doctor or Lawyer with a duty to keep client’s
information conﬁdential?
Because…. privacy.
WHY ENCRYPT?

22.
12
Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by
law as can be demonstrably justiﬁed in a free and
democratic society.

23.
13
Exclusion of evidence bringing administration of justice into disrepute
24(2) Where, in proceedings under subsection (1), a
court concludes that evidence was obtained in a
manner that infringed or denied any rights or freedoms
guaranteed by this Charter, the evidence shall be
excluded if it is established that, having regard to all
the circumstances, the admission of it in the
proceedings would bring the administration of justice
into disrepute.

30.
20
How do they pick me for a search?
• Importing something the CBSA deems to be suspicious
• Travelled to and from “high risk” destinations
• Single man traveling alone
• Demonstrate “an interest in Pornography”
• Associated, or are believed to be associated, with known
importers or exporters of materials the CBSA objects to.
TARGET @ BORDER

38.
23
1. Take your stuff - CBSA can detain “goods” including your
electronic device and its contents.
Detentions can last for months
2. Search - Use forensic tools to ensure evidence is not corrupted or
lost (EG - “IC-What-UC”)
They can also copy everything on your electronic device (“Disc
Image”) for later inspection.
Take a Disc Image and run password-cracking software.
NOTE: CBSA has not released information on how information is
“destroyed” after it is searched and found to be legal.
HOW @ BORDER

39.
24
When you are crossing the border, if the
CBSA decides to search your electronic
devices,
there is nothing you can do about it.
@ BORDER

40.
25
You will be asked for username and password.
(CBSA policy states you are not required to give it, unless a Court
orders you to)
@ BORDER

41.
26
Detained >> Right to Remain Silent
Detained >> Lawyer
Detained >> Right to request to be taken to the senior ofﬁcer on duty for him
or her to conﬁrm whether there are reasonable grounds for the search.
Am I detained?
Questioning or luggage searching by a customs ofﬁcial at a border
crossing is not a “detention”
If you are taken aside and required to submit to extensive searching and
you cannot leave, you have been detained.
A search of your body must be done by a person who is the same sex as
you.
RIGHTS @ BORDER

42.
27
REALITY @ BORDER
BCCLA believes that refusing to provide a password is within your
rights under Canadian law.
NOT tested in Canadian courts (no guarantees)
Refusal >> Treated as suspicious (detailed inspection and detention of
device)
Refusal + Not Canadian >> risk denial of entry into the country
Refusal >> Delay

47.
32
UNITED STATES
Testimonial:
If the response requires a person “to make extensive use
of ‘the contents of his own mind,’” producing those
documents is testimonial.
Fifth Amendment: “no person … shall be compelled in any
criminal case to be a witness against himself”
Generally:
Testimonial >> CANNOT be compelled
Non-Testimonial >> CAN be compelled

48.
33
UNITED STATES
Strongbox keys - NOT testimonial
Safe combinations - Testimonial
A safe key can be compelled, but a safe combination cannot;
A ﬁngerprint that unlocks an iPhone can be compelled, but an
iPhone’s numeric password cannot.

51.
36
Proceedings in criminal and penal matters
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the speciﬁc offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings
against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the beneﬁt of trial by jury where the maximum
punishment for the offence is imprisonment for ﬁve years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under
Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if ﬁnally acquitted of the offence, not to be tried for it again and, if ﬁnally found guilty and punished for the offence, not to be tried or
punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of
sentencing, to the beneﬁt of the lesser punishment.

52.
37
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof
except in accordance with the principles of
fundamental justice.

53.
38
R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151 at para.
47
“... the right to silence may be postulated
to reside in the notion that a person
whose liberty is placed in jeopardy by the
criminal process cannot be required to
give evidence against himself or herself,
but rather has the right to choose
whether to speak or to remain silent.”
- Chief Justice Beverley McLachlin